Paying for Prokofiev

Misreading the 1st Amendment and copyright law, the Supreme Court last week made it more difficult for Americans to enjoy foreign works of art, including decades-old musical and literary masterpieces. It upheld a 1994 law implementing a treaty requiring signatory countries to extend copyright protection to works receiving protection in their countries of origin. Never mind that many of those works long had been in the public domain in the United States.

The effect of the 6-2 decision, as Justice Ruth Bader Ginsburg acknowledged in her opinion, will be to force those who want to publish or perform works covered by the law to pay royalties to copyright holders, even if the price is prohibitive. Citing a popular musical piece performed by countless community and school orchestras, she wrote: “Prokofiev’s ‘Peter and the Wolf’ could once be performed free of charge; [now] the right to perform it must be obtained in the marketplace.” That’s true of all copyrighted material, of course. The difference is that belatedly protecting the works in question upsets settled expectations that they could be used without permission or payment.

Moreover, as Justice Stephen G. Breyer noted in his dissent, doing so does not serve the purposes of the copyright clause in the Constitution. Article I authorizes Congress “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” In other words, the goal is to provide an incentive for the creation of new works. But Breyer argued that the law “brings about higher prices and costs, and in doing so seriously restricts dissemination, particularly to those who need it for scholarly, educational or cultural purposes -- all without providing any additional incentive for the production of new material.” Many of the authors and artists of these works are long dead. And the law prohibits the use of so-called orphan works that have copyright holders who would be entitled to payment but who are “difficult or impossible to track down.” In all, the total of newly protected works could be in the millions.

As for the 1st Amendment, supporters of the law note that compliance with the Berne treaty provides protection overseas for U.S. copyrights. That’s not a trivial interest, but the court didn’t fairly weigh it against what Breyer called the “speech-related harms” of the law, including the restriction of previously available material. Like acts of Congress, treaties are the law of the land, but the supreme law is the Constitution. The majority gave it short shrift in this decision.